Holder's Last Days?

The Liberals GOP Twin wrote: Here's a more succinct explanation of Holder's lies...

It’s important to remember why Holder named Rosen as a potential co-conspirator in that warrant application, too. Without that argument, a judge would never have allowed the unlimited snooping on Rosen’s communications that Justice sought. They would have had to follow the statutes erected by Congress in the wake of Watergate to protect reporters from executive-branch abuses of power. The naming of Rosen as a prosecution target allowed Justice to get around that statute — and it still took three judges to approve that application even under those circumstances. If the defense now is that Rosen was never a prosecutorial target, then the warrant application is a lie, and Holder has to answer for that perjury, too.

http://hotair.com/archives/2013/05/31/a ... ntial-spy/

That says it better than I can.

Yep, a source that goes by the name of "hotair" does seem to fit your preferences. If you really would like this explained to you, the difference between investigations and prosecution, the use of unindicted co-conspirators to further investigations, I suggest rather than parroting right wing blogs, go to the volokh conspiracy website ([url=http://www.volokh.com" onclick="window.open(this.href);return false;]www.volokh.com[/url]). That site is written by libertarian law professors (including the NRA's Dave Kopel), that hate Holder and Obama (Volokh was one of the key parts of the lawsuit against Obamacare), and see a scholarly opinion about this issue. Of course I understand your fondness to quote from "hotair".

If That’s the Case for Holder Lying Under Oath, It’s Not Just Weak — It’s Bordering on Silly
Orin Kerr • May 29, 2013 10:19 pm

My co-blogger Jonathan Adler points out the story reporting that the House Judiciary Committee is investigating whether Eric Holder lied under oath:

The panel is looking at a statement Holder made during a back-and-forth with Rep. Hank Johnson (D-Ga.) about whether the DOJ could prosecute reporters under the Espionage Act of 1917, an aide close to the matter told The Hill.

“In regard to potential prosecution of the press for the disclosure of material — this is not something I’ve ever been involved in, heard of, or would think would be wise policy,” Holder said during the hearing.

However, NBC News reported the following week that Holder personally approved a search warrant that labeled Fox News chief Washington correspondent James Rosen a co-conspirator in a national security leaks case.

The panel is investigating whether NBC’s report contradicts Holder’s claim that he had not looked into or been involved with a possible prosecution of the press in a leaks case.

In his post below, Jonathan explains why he is unpersuaded that Holder lied. I would make the same point more strongly. If that’s really the case for Holder lying under oath, it’s not just weak. It’s so weak it is bordering on silly.

First, let’s look at what Holder said — not only the one sentence, but the question he was asked and the full answer he gave. During the Q&A part of the hearing, Rep. Hank Johnson (D-GA4) made a meandering statement in which he said (among other things) that federal law was problematic because it appeared to make it a crime for reporters to report national security leaks. Here’s the relevant part of Johnson’s comment:

We have an old law that would allow for prosecution of anyone who published the classified information, isn’t that correct? . . . .

I would argue that the Espionage Act of 1917 would authorize the prosecution of anyone who disclosed classified information. And perhaps that’s another area that we may need to take action on here in this Congress. . . . We need to protect the ability of the press to engage in its First Amendment responsibilities to be free and to give us information about our government so as to keep the people informed.

Johnson then yielded the remainder of his time to Holder for comment. Holder replied with the following, starting here at about 5:20:

I would say this. With regard to the potential prosecution of the press for the disclosure of material, that is not something I have been involved or heard of, or would think would be a wise policy. In fact, my view is quite the opposite. What I proposed during my confirmation, what the Obama Administration supported during 2009 — and I understand, I think, Senator Schumer is introducing a bill that we are going to support as well — is that the press should be — that there should be a shield law with regard to the press’s ability to gather information and disseminate it. The focus should be on those people who break their oaths and put the American people at risk, not reporters who gather this information. That should not be the focus of these investigations.

As the full answer makes clear, Holder was making a point about prosecutorial discretion. For any prosecutor, there is a fundamental distinction between asking whether there is probable cause that someone committed a crime and asking whether that person should be prosecuted for the alleged crime. They are two very different issues. The first issue is whether the conduct was likely prohibited by the laws Congress enacted, as interpreted by the Judiciary, as a matter of law. The second issue is whether it is a wise use of Executive resources to bring such a case as a matter of prosecutorial discretion.

Holder’s testimony was about the second issue, prosecutorial discretion. Rep. Johnson had said that the law was problematic because it made reporters criminals. Holder responded that he would not exercise prosecutorial discretion that way, and that he favored a shield law codifying that approach to prosecutorial discretion.

On the other hand, the statement in the Rosen warrant affidavit was about a different question. It was a statement about existing criminal law, not the Executive’s discretion. It offered the view that there was probable cause to believe that Rosen had violated the law, but it did not say that Rosen was a target of the investigation. In short, the two statements were about two different things: The affidavit was about a view of the criminal law Congress enacted, and the testimony was about an approach to Executive-branch prosecutorial discretion. There is nothing at all inconsistent between them.

It is true that in some criminal cases, a warrant affidavit might mention the possibly criminal conduct of a third party because the government considered the person a possible target. In those cases, the mention of the third party’s involvement might be some kind of signal that the government was considering a criminal case against that third party. Does that mean that the statement in the affidavit shows that Holder thought that Rosen might be a target here, at least assuming that Holder was privy to every discussion at DOJ about Rosen?

The answer is “no,” for the reason I detailed last week. As I explained there, this particular affidavit was unusual because it had to comply with a federal privacy statute known as the Privacy Protection Act (PPA). The PPA prohibits the government from conducting a search or seizure of a reporter’s property unless there is probable cause that the reporter was involved in the crime. As it applies to investigations of national security leaks, the PPA requires the government to make the case that there was probable cause Rosen was involved in the offense before it can obtain a warrant.

Importantly, the PPA doesn’t require the government to actually be considering prosecuting the reporter. It only requires the government to establish probable cause that the reporter’s conduct was prohibited by Congress’s law. So, again, there is nothing inconsistent between Holder concluding that there was probable cause to believe Rosen committed a crime and Holder testifying that he has never “been involved in, heard of, or would think would be wise policy” to bring a criminal prosecution against a reporter.

In the comment threads to Jonathan’s post, some commenters argued that you can read Holder’s testimony as saying that there was not a “potential” for prosecution against Rosen. If the affidavit stated the basis for probable cause that Rosen committed a crime, they argue, isn’t there “a potential” that Rosen could be prosecuted, at least in a certain sense, thus making a possible case for perjury? This argument misrepresents what Holder said. As the full version of Holder’s answer makes clear, Holder was making a comment about prosecutorial discretion. He was saying that even if the law technically makes it a crime for reporters to report the news, he does not think it is wise for the Executive to bring such prosecutions. I think it’s hard to read that as testifying that there has never been probable cause to believe a reporter has committed a crime.


Did Eric Holder Lie to Congress?
Jonathan H. Adler • May 29, 2013 6:25 pm

The Hill reports that the House Judiciary Committee is investigating whether Attorney General Eric holder lied to Congress when testifying about the Justice Department’s surveillance of reporters and media organizations.

The panel is looking at a statement Holder made during a back-and-forth with Rep. Hank Johnson (D-Ga.) about whether the DOJ could prosecute reporters under the Espionage Act of 1917, an aide close to the matter told The Hill.

“In regard to potential prosecution of the press for the disclosure of material — this is not something I’ve ever been involved in, heard of, or would think would be wise policy,” Holder said during the hearing.

However, NBC News reported the following week that Holder personally approved a search warrant that labeled Fox News chief Washington correspondent James Rosen a co-conspirator in a national security leaks case.

AtlanticWire has the full exchange that prompted the investigation and additional background here.

Now I’m no fan of the Attorney General, and have been critical of the Administration’s decision to target journalists in its leak investigations, but if this is all there is, I don’t see it. Did Holder suggest he had less involvement in the Rosen case than he, in fact, had. Sure. Did he say anything that was untrue or that would justify charging him with lying under oath? No. Based on what I’ve seen reported, it’s not even close.

The core of the claim is that the Attorney General’s testimony conflicts with the fact that he signed a warrant application that attested that there was “probable cause to believe that the reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate.” But there’s no contradiction between Holder’s statement and his reported actions, let alone a basis for accusing him of lying under oath. Holder signed a document stating that the government believed there was probable cause to believe Rosen had committed a crime, but there’s no evidence that Holder (or anyone else) in the Administration actually considered taking the next step of indicting (let alone prosecuting) Rosen for his journalistic endeavors. Prosecutors don’t prosecute everyone they believe may have violated the law; they don’t even consider prosecuting everyone they investigate. Some “unindicted co-conspirators” are never at risk of prosecution.

If, as Holder testified, it would not be “wise policy” to prosecute journalists for reporting on leaked information, this would not preclude the Department from investigating or conducting surveillance on journalists so as to prosecute government leakers. Indeed, asserting the existence of probable cause in order to obtain information to facilitate the prosecution of a government leaker is wholly consistent with a policy of aggressively pursuing government leakers while not indicting or prosecuting journalists even if one believes their solicitation of classified material is against the law. So whether or not one agrees with the Justice Department’s current policies (and I do not), I see no basis for accusing the Attorney General of lying to Congress on this matter.

And this is "fair use" above? You're the thread Nazi... did you get special permission to use that much material?

Anyway... that's another opinion... no more or less then the various opinions that I have posted. You prove nothing except that someone has a different opinion. Good try though.

Right, because a right wing blog named hotair is a much better source for a legal opinion than libertarian law professors. Certainly much more than the far right wing blog posts that you have posted. At least for "high information" posters.

The above material was used with full attribution and not passed off as my work product, unlike attempts by other posters. Since the short sections that were copied were done for scholarly purposes, they certainly meet the standard of fair use.

The New York Times this morning is reporting that unidentified sources in the West Wing think it is time for Holder to resign. Dana Perino of Fox News expects him to resign in August during recess and that Janet Napolitano will replace him.

Dana Perino, the former press secretary for Bush, the "expert" for Fox News, that unbiased "news" channel, is your "source"?

Holder the lawyer for Rich whom Slick Pardoned and a lowlife WDC radical operative - is DONE. He and Obamacakes are idelogue brothers and Cakes may save him .....but we will see. Note carefully which news organizations attended their tea party (off the record)......will tell us much.
Clinton, Holder, Cakes ALL have close ties to the defunct Weather Underground, SLA, SDS and Black Panthers. Can't wait till 2015 when the heat will rise.....hope Slick's moll runs........

Pardon the diversion from the media slaughter.....but we are challenged directly by Putin in Syria.......lets see what Cakes and the turncoat Kerry do with this mess......Swift Boaters never forget......as in NEVER......

Something the Dog Said wrote: Dana Perino, the former press secretary for Bush, the "expert" for Fox News, that unbiased "news" channel, is your "source"?

No... I don't know where the Dana Perino remark came from but the NYT's says there may be trouble in river city... "While the White House publicly backed Mr. Holder as he tried to smooth over the latest uproar amid new speculation about his future, some in the West Wing privately tell associates they wish he would step down, viewing him as politically maladroit."

We'll have to wait and see.

Amazing how "Swift Boaters" never forget what actually never happened. Kind of like "Bear Bombers over Guam"... Given enough right-wing money, they can remember ANYTHING they're told to remember....

Gee, there are some Republicans who "never forget" that Obama was born in Kenya, is a Muslim, and is carrying a foreign passport. (And that "Agenda-21" means the U.N. is 'comin' to get yer guns...") One should never over-estimate the intelligence of the "Swift Boaters."

Hence the study that proves Republicans lie more than any other group.

Jazz.....I was there 68-72.........Kerry is a showboat turncoat.......period.

deltamrey wrote: Jazz.....I was there 68-72.........Kerry is a showboat turncoat.......period.

Did you serve along side Kerry the whole time he was there? If you didn't, then you don't know what kind of soldier he was.